A CONSULTING ENGINEER / ARCHITECT’S PROTECTION FROM A NEGLIGENCE CLAIM BY A CONTRACTOR

Posted on November 27, 2011November 8, 2024 by Edward Garber

The case of Recreational Design & Construction, Inc. v. Wiss, Janney Elstner & Associates, Inc., 2011 WL 5117163 (S.D.Fla. 2011), is a recent case discussing whether an independent engineering firm hired as a consultant by an owner can be liable to the general contractor for professional negligence under Florida law. In this case, the City of North Miami Beach (“City”) hired a contractor to perform all design and construction services for a water slide project (“Contractor”). The City also hired a separate engineering firm to evaluate and perform inspections of the contractor’s work (“Engineer”). The engineering firm hired another engineering firm as a subconsultant to perform the engineering inspections (“Subconsultant”).

The Subconsultant issued a report to the Engineer that was provided to the City explaining that the water slide the Contractor designed and started to construct was structurally unsafe. The report recommended repairs to be implemented on the slide. The City rejected the Contractor’s work based on the Subconsultant’s recommendation and required the Contractor to implement the repairs before completing the work.

The Contractor, instead of suing the City, sued the Engineer and Subconsultant for professional negligence (also known as professional malpractice) to recover its costs in reconstructing the slide and implementing the repairs recommended to the City. Both the Engineer and Subconsultant moved to dismiss the Contractor’s complaint arguing that they did not owe a duty of care to the Contractor; therefore, they could not be liable in negligence to the Contractor under the law. The Southern District of Florida agreed with the Engineer and Subconsultant and dismissed the Contractor’s complaint with prejudice.

In order to be liable for professional negligence, a plaintiff must prove the following elements against the defendant-professional: 1) the defendant owed a duty of care to the plaintiff; 2) the defendant breached its duty of care; and 3) the breach of the duty of care proximately caused damages to the plaintiff. See Recreational Design & Construction, 2011 WL at *2 citing Moransis v. Heathman, 744 So.2d 973, 975 n.3 (Fla. 1999). The element of duty, however, is a question of law in Florida and must be determined by the court before a negligence case proceeds to the jury or trier of fact. See Wallace v. Dean, 3 So.3d 1035, 1046 (Fla. 2009).

The Contractor relied on the Florida Supreme Court’s ruling in A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla. 1973), in arguing that the Engineer and Subconsultant owed the Contractor a duty to perform its work and issue recommendations to the City with reasonable care and due diligence. In A.R. Moyer, the Florida Supreme Court held that a general contractor can maintain a cause of action against a supervising architect for the architect’s negligent performance of a contractual duty (even though the contractor has no contractual privity with the architect). Particularly, the Florida Supreme Court found that the following circumstances would present a professional negligence cause of action by the contractor against a supervising architect or engineer:

“(a) supervising architect or engineer is negligent in preparation of plans and specifications; (b) the supervising architect or engineer negligently causes delays in preparation of corrected plans and specifications; (c) the supervising architect or engineer negligently prepared and negligently supervised corrected plans and specifications; (d) the supervising architect or engineer negligently failed to award an architect’s certificate upon completion of the project; (e) the architect or engineer was negligent in exercise of supervision and control of contractor.” A.R. Moyer, 285 So.2d at 402.

Of importance, the “professional defendant [in A.R. Moyer] was an architect whose responsibilities on the relevant project were to prepare the designs and plans for the project, approve the overall structural components or framework for the project, and supervise the general contractor’s execution of those plans, including having the authority to halt the contractor’s work.” Recreational Design & Construction, 2011 WL at *4. In other words, A.R. Moyer dealt with more of a traditional architect or engineer that, among other things, served as the architect / engineer-of-record for the project and had detailed contract administration services that enabled them to make decisions that could effect the contractor, which is why the Court described the professional as a supervisory architect or engineer.

But, in Recreational Design & Construction, the Engineer and Subconsultant, were really nothing more than a consultant providing expert-related services issuing recommendations, advice, or suggestions to the City in which the City could accept or reject. The Engineer and Subconsultant did not serve as the engineer-of-record. They did not design the plans for the City’s project. They did not issue specifications for the project. They were not performing supervision to ensure that the Contractor’s construction complied with their design (since they were not the designer). And, they did not have authority to halt the construction of the project or issue corrective details directly to the Contractor. Instead, as previously mentioned, their services were truly within the realm of consulting services in which it was up to the City to determine how it wanted to utilize any suggestions, advice, or recommendations. For these reasons, and because the role of the Engineer and Subconsultant in this case was substantially different than the role of the architect in A.R. Moyer, the Southern District held they did not owe a duty of care to the Contractor. See also McElvy, Jennewein, Stefany, Howard, Inc. v. Arlington, Elec., Inc., 582 So.2d 47 (Fla. 2d DCA 1991) (finding that architect did not owe duty to subcontractor because architect was required to issue advice to owner regarding interpretation of architect’s design, but it was the owner responsible for making the ultimate decision based on the advice of the architect).

An architect or engineer that is serving as the architect / engineer-of-record for a construction project may want to implement certain language in their contract with the owner that while it will render certain advise, recommendations, or suggestions to the owner regarding its design and specifications and interpretations thereof, it is the owner that is required to render the ultimate decision regarding the advice, suggestions, and recommendations. This way, if the contractor does pursue a professional negligence claim against them, they can argue they were not a supervisory architect or engineer and should not be deemed to owe a duty to the contractor because it was the owner that made the ultimate decision that affected the contractor.

Also, owners on construction projects sometimes hire other consultants or experts to assist in the construction of their project. For instance, sometimes owners hire a building envelope consultant or a glazing consultant, etc. These consultants sometimes worry about the contractor asserting a negligence claim against them based on their advice, suggestions, and recommendations made to the owner. These consultants, however, should be able to rely on the arguments in Recreational Design & Construction to support they do not owe a duty to the contractor. These consultants can also employ the same contractual language suggestions above so that their contract specifically expresses that it is the owner that is required to act on the advice, suggestions, and recommendations of the consultant so that it remains understood that the owner, and not the consultant, has ultimate control over the contractor’s work.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

ASSERTING NEGLIGENCE AGAINST A CONSTRUCTION-MANAGER OR OWNER’S REPRESENTATIVE

Posted on August 14, 2011November 8, 2024 by Edward Garber

Cannon v. Fournier, 57 So.3d 875 (Fla. 2d DCA 2011) is an interesting personal injury case that touches upon whether a contractor’s qualifying agent can be individually liable for acts and omissions of the limited liability construction company he/she qualifies and whether a construction company can be held liable for negligence to a third party.

In this case, an owner wanted to build a new house. The owner hired a licensed construction company to essentially serve as a construction manager-agency (not-at-risk), although this case does not use this term. In other words, the owner would contract directly with all of the trade subcontractors, but it was the construction company that helped the owner obtain a residential permit, referred trade subcontractors directly to the owner, and supervised, consulted, and coordinated the trade subcontractor’s work, and assisted with inspections at the project. The construction company undertook many of the tasks a general contractor would ordinarily undertake except for obtaining the residential permit and contracting directly with the trade subcontractors.

One of the trade subcontractors the owner hired was a framer. This happened to be the only, or one of the only, subcontractors that did not come referred to the owner by the construction company. During construction, it was discovered that a beam had been incorrectly installed on the second floor. The construction company (through its qualifying agent) met with the framer to discuss a solution to this issue, and it was during the correction of this issue that a carpenter working for the framer fell from the second floor severely injuring himself.

The injured worker sued the construction company and its qualifying agent under a negligence theory saying, among other things, they had a duty to perform all work in a competent, safe and workmanlike manner and they breached this duty which resulted in the injured worker falling. The construction company and its qualifying agent moved for summary judgment and the trial court granted summary judgment in favor of the qualifying agent dismissing him from the lawsuit, but declined to enter summary judgment in favor of the construction company.

On appeal, the Second District held that the trial court denying summary judgment in favor of the construction company but granting it in favor of its qualifying agent was inconsistent. The Second District held that:

“[O]fficers or agents of corporations may be individually liable in tort if they commit or participate in a tort, even if their acts are within the course and scope of their employment. The same rule applies to limited liability companies. Thus, to the extent that the LLC could be held liable for its acts or omissions in connection with the construction of the Hoffmans’ [owner] residence, Mr. Fournier [qualifying agent] may be held liable as well.” Cannon, 875 So.2d at 881 (internal citations omitted).

Under the Second District’s rationale, if the construction company owed a duty of care to the plaintiff injured worker, then presumably, so did the qualifying agent. To determine whether the company owed a duty of care, the Second District focused on whether the construction company was serving in the role of the general contractor. The Court focused on many of the facts previously mentioned that a construction manager-agency would undertake, specifically, the coordination, communication, and supervising of construction workers and activities at the job site (despite not contracting with any of the trade subcontractors). To that end, the Court expressed:

“The circuit court continued by correctly identifying the critical point as the extent of the LLC’s control over and supervision of the job site. A person or entity that controls a supervises the job site has a duty to provide workers on the job with a safe place to work. If the LLC assumed such a duty voluntarily or by contract, it may be held liable to workers who sustain injuries on the job caused by a breach of that duty without regard to whether the LLC was acting as a general contractor.” Cannon, 875 So.3d at 882.

Accordingly, the Second District reversed the summary judgment entered in favor of the qualifying agent (because if his construction company could be negligent, then so could he under the Court’s rationale.)

Outside of the personal injury context, this case can be used to support a negligence argument against an owner’s representative or construction manager-agency by a non-privity subcontractor, etc. The duty owed would be that the entity is essentially acting as a general contractor (or has similar job-related functions), but just without the title. Therefore, the entity owes a duty to ensure that construction is properly supervised, coordinated, and managed in a competent, safe and workmanlike manner.

Furthermore, this case can be used to support an argument against a qualifying agent to hold that the qualifying agent should be held individually liable for the torts of the construction company he/she qualifies. This argument would carry more weight if the company, similar to the company in Cannon, was a sole-owned company with the qualifying agent serving in the role of the owner, qualifying agent, and lone employee of the company. However, even if this were not the case, if the qualifying agent is the one overseeing construction activities, then arguably, if their company commits a tort, they too can be held liable for participating in the tort, especially considering companies can only act through people.